Palestinian ‘Long Shot’ Legal Fight Over 1917 British Declaration

JERUSALEM (AFP) – A Palestinian plan to sue Britain over a 1917 declaration backing a Jewish homeland in Palestine could help rally supporters, but has little chance of success, legal analysts say.

The Palestinian government on Monday announced it was seeking legal action against Britain for the nearly century-old Balfour Declaration, drawing scorn from Israel.

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The 1917 declaration by British foreign secretary Arthur Balfour said the British government “view with favour the establishment in Palestine of a national home for the Jewish people”.

It was a major step towards the eventual establishment of the state of Israel.

The British had seized much of the land at the time as the Ottoman Empire was falling apart, and Palestinians say the declaration gave away their homeland and provided the impetus for mass Jewish migration.

They argue that the document led to the Nakba — or catastrophe in Arabic — in which more than 760,000 Palestinians fled or were driven from their homes in the war surrounding the creation of Israel in 1948.

Foreign minister Riyad al-Malki, in a recent speech on behalf of Palestinian president Mahmud Abbas, said as a result of a promise “hundreds of thousands of Jews from Europe and elsewhere came to settle in Palestine at the expense of our people.”

Israel’s foreign ministry said the legal campaign amounts to a refusal “to recognise the legitimate and indigenous connection of the Jewish people to their ancient homeland.”

– ‘Moral argument’ –

Asked by AFP to clarify what the claim would be and to which court it would be submitted, a spokesman for the Palestinian foreign ministry said that would soon be decided.

If seeking reparations, such a court case would be rare.

Eric Posner, law professor at the University of Chicago and author of a paper on reparations in international law, said he could not think of an example of international courts being used in this manner.

In most cases, he said, reparations are given by governments that wish to atone for previous acts.

In West Germany, for example, the government set a policy that Holocaust victims could claim damages, as did the US Congress for Japanese Americans interned during the Second World War.

But Britain has never apologised for the Balfour Declaration.

“People don’t generally try to go to an international court. They go to the government and make what they see as a moral argument,” Posner said.

If the Palestinian government is set on the international courts, the first potential route would be through the United Nations’ legal body, the International Court of Justice, analysts say.

Palestine is not a full UN member state, though it has observer status.

Stuart Casey-Maslen, professor of law at the University of Pretoria in South Africa, said the Palestinians could get a vote in the UN General Assembly calling on the ICJ to investigate.

But the ICJ would only be able to judge the case by the laws that existed in 1917, Casey-Maslen explained.

This is before many of the basic principles of international law were agreed upon and as such the law is “likely to be very favourable to the UK.”

The principle of the Balfour Agreement was also ratified in 1922 by the League of Nations, the forerunner to the United Nations.

Casey-Maslen explained that in any suit the Palestinians would need to show that the declaration directly led to the Nakba and was not “superseded by subsequent events, including of course the Holocaust and the creation of the UN and its intervention in Palestine.”

The United Nations in 1947 adopted a plan for dividing the land into two states, one for Arabs and another for Jews.

– ‘Line in the sand’ –

Alternatively, individual Palestinians could pursue the case in the British legal system.

In 2012, Kenyans who were tortured during the quashing of the 1952-1960 Mau Mau uprising won a case in the British High Court, with payouts totalling 20 million pounds ($26 million, 23.5 million euros).

But the length of time since the Balfour Declaration and the lack of survivors makes that route difficult as well.

“We succeeded in the Mau Mau case because there were people still living from the era,” Martyn Day, senior partner at the Leigh Day law firm that brought the case, said.

“We had five test cases and one of the cases died during the action, and the judge decided against that action.

“That is a pretty clear line in the sand.”

Asked to rate the chance of any legal success through the courts, the four experts’ opinions ranged from small to “negligible.”

But Andrew Kent, law professor at Fordham University in New York, pointed out that the Palestinians may see victory more in political than legal terms.

“Could they get a statement from the UN General Assembly? Sure,” he said.

“Could they get a political statement from the (UN) Human Rights Committee? Sure. But those would not be lawsuits and would not be binding.”